Harold Meyerson, editor of the American Prospect, notes that the Supreme Court ruled unanimously when they last considered public sector unions. In the Abood case in 1977, they ruled that unions could not charge members to pay for their political activities, but that they could require members and non-members to pay for collective bargaining that improved their pay, working conditions, pensions, etc. Even the conservative members of the High Court agreed that it was legal and fair to expect even non-members to contribute to the cost of labor unions that advocate for them.
What changed from 1977 to 2016? The Supreme Court now has judges appointed by Ronald Reagan, George H.W. Bush, and George W. Bush. That’s one thing but not the only difference.
When the Court held oral arguments on Friedrichs v. California Teachers Association, a case that could overturn Abood, the five conservative justices made fairly clear that they were inclined to scrap their predecessors’ handiwork. Whatever faint hopes the labor movement had entertained that it might retain the support of Antonin Scalia, who’d upheld the judgment of Abood in previous opinions, were made fainter still by Scalia’s comments apparently embracing the argument that collective bargaining with government agencies is inherently political, thereby absolving non-members from having to pay any union dues at all.
What’s changed is the conservative justices’ assessment of unions—reflecting, I’d argue, the changed assessments of both business and Republican elites.
A look back at the opinions in Abood shows that the court was considering the same questions four decades ago that it is considering today. What’s changed is the conservative justices’ assessment of unions—reflecting, I’d argue, the changed assessments of both business and Republican elites.
What has changed is not just the composition of the Court, but the political climate. In today’s politics, unions do not command the political clout they had in 1977, and the Friedrichs case will reduce it even more.
What’s changed since 1977, I suspect, is the regard in which conservatives now hold collective bargaining itself. In acknowledging that pure collective bargaining, if such a thing were even ascertainable, might justify fees from nonmembers, and simply by the act of concurring, Powell was bowing to the reality that collective bargaining was an established American institution that conservatives couldn’t frontally attack. Today, in the private sector, it’s a disestablished institution. Over the past 60 years, the rate of unionization in the private sector has fallen from roughly 40 percent to just 6.6 percent. In the public sector, it’s at 35 percent, but some key states that had long afforded collective-bargaining rights to public employees—most notably Wisconsin and Indiana—have effectively repealed them in recent years at the behest of Republican governors who are far more anti-union than Republican governors in the years when the Court ruled on Abood. Time was when not just the Rockefeller liberals but the Nixon centrists in the GOP chose not to attack unions (well, most unions); when Republican members of Congress from the Northeast, Midwest, and West Coast had tens of thousands of union members in their districts, a number of whom voted Republican.
Meyerson sees the Friedrichs case as a double whammy, one that will diminish the power of the unions and the Democratic party. It will also weaken one of the key institutions that built the American middle class. If the unions get slammed by this case, income inequality and wealth inequality will only grow worse. And that’s bad not just for unions, but for our society.